Appellate judges love to do this once in a while: write, a la Stanley Feldman,  a long opinion explaining why black is really white even though the statutes and the cases and the common law all thought it was black.

The case was a messy corporate/family dispute. In the course of it Green, a corporate officer, violated a court order prohibiting him from making off with corporate assets. Finding him in contempt, the trial court struck his pleadings and awarded the other side some injunctive relief. A judgment was entered, with Rule 54(b) language; damages were to be determined later.

The law has always been that civil contempt orders are not appeable; the remedy is by special action. The civil contempt statute has no provision for appeal, the common law does not allow appeal, and our Supreme Court has said that there is no appeal. It takes Joe Howard’s dissent only a couple of pages to point out law that the Court of Appeals has no power to change. The moral should be that you can’t make an order appealable just by dressing it up like a judgment.

But the majority decides that the order was an “interlocutory judgment” that could be appealed under 12-2101(G). What about the statute, cases, etc.? The long and short of the fifteen pages (in fairness to Judge Pelander, the rest of his 37-page opinion discusses the merits; in more fairness to him, he doesn’t try to hide the fact that the law is against him) is that they don’t really apply to this situation because this was, you see, a “judgment.” Why was it a judgment? It did award part of the relief sought in the action but this is hardly the first time contempt ever did that. In reading the majority opinion one can’t escape the feeling that the good judge  thought it was a judgment mostly because it says “Judgment.”

Reasonable people could argue that an order of this sort is enough like a judgment that it ought to be appealable. But the law is — or was — that it can’t be until the Legislature lets it be. That’s a step that shouldn’t be skippable.

What about the merits? Corporate-law types will want to read the case but the substance is pretty mushy: the trial court was right on some things, wrong on others, based on the sort of equitable “factors” that this court makes up and  the next will follow or ignore as it pleases.

This is an inconsequential memorandum decision. Why blog it? To say a word, or two, about memos.

We know this is a memorandum decision because it says so at the top of the first page. It is otherwise indistinguishable from a published opinion: the form, style, and content are exactly the same, including the careful description of the facts and procedure, the he-said-she-said recapitulation of the parties’ arguments, the standard form paragraph reminding us for the nine-hundredth time what the standard of review for summary judgment is, the section headings, the footnotes, and the whole nine yards of what passes for “style” in opinions nowadays (which deserves a separate rant of its own – or, better yet, several —  but isn’t the subject of this one). The opinion is twelve pages long.

Why in the world do this with a memorandum?  A memo will be read by the parties and, possibly, by courts above and below. All any of them wants to know is which argument won.  The parties already know the rest; other courts can be told or reminded. As for the law, explanation of law is precisely what memos are not about.

A memorandum opinion should be a page or two long, the size of a long minute entry from the trial court. Like a minute entry, it should be an announcement, not a piece of literature. To write a memorandum just like a published opinion is a waste of judicial time and resources.

So why do the courts do it?

When our courts started doing memorandum opinions, disappointed litigants accused them of using memos to hide prejudiced, partisan, or merely sloppy decisions. And so the courts were careful to write long memos. But that wasn’t enough, the memos were “hidden”; so the courts put them on their web sites. But that still wasn’t enough: once memos looked like published opinions, and were publicized almost like published opinions, it became an “injustice” that they couldn’t be cited like published opinions. At that point, thank goodness, the courts had had enough: the Supreme Court not long ago turned down a requested rule change that would have allowed memos to be cited.

The courts have themselves to blame. They should have drawn the line on memoranda years ago. Judges should of course be responsive to criticism: to the criticism that memos try to hide something, they should respond “No, they don’t.” It is not a necessary part of  judicial demeanor to cringe at every petulant accusation, nor to waste your time trying to appease the simple-minded incomprehension that passes as sophisticated skepticism among far too many lawyers.

But the joke is on lawyers, who never quite seem to catch on to how things work. When judges want to pull a fast one they never hide it in a memo. They publish it for all the world to see, using one or more of the usual tricks of the trade, e.g., citing the wrong case and never mentioning the right one, accusing the lawyers of misunderstanding the precedent (when in fact their understanding is inconveniently accurate), using rhetorical and emotional flourishes to hide the missing links in the chain of reasoning. Those sorts of opinions are routinely praised, which shows what acute observers most lawyers are.